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Testimony of the Real Estate Board of New York Before the New York City Council, in Support of the Greater East Midtown Rezoning

June 20, 2017

The Real Estate Board of New York (REBNY) is a trade association with over 17,000 members comprised of owners, builders, residential and commercial brokers, managers, lenders, and other real estate professionals active in New York City.

The East Midtown business district is a tremendous driver of economic activity and employment, and is critical to the City’s tax base and economy. According to the City, East Midtown accounts for 10% of real property taxes, or $2.4 billion in fiscal year 2017.

The Greater East Midtown Rezoning plan emerged after a year-long collaborative process among key stakeholders. The goals of the Greater East Midtown Rezoning were to revitalize an aging office stock, provide public realm improvements, and fund the continuing maintenance and operation of our treasured landmarks.

REBNY supports the City’s Greater East Midtown Rezoning proposal.

In order for this vision to be realized, new development must occur. As such, we have concerns that the plan may be too restrictive given the high cost of redeveloping existing sites. We propose modifications to the plan which preserve and promote its goals without inhibiting new development.

The concept of a floor price to establish a minimum contribution to the improvement fund is an obstacle to new development. Instead of a mandated minimum contribution, the City should allow the market to determine the value of Transferred Development Rights (TDR) sales and collect 20% of that amount. The City’s floor of $393 per square foot (PSF) and a minimum contribution of $78.60 would represent 44% of the value of TDRs based on REBNY’s analysis of TDR sales in the City’s Market Study [See Attachment 1: Greater East Midtown TDR Value]. This effective contribution rate is well above the City’s recommended 20% contribution for public realm improvements, and would be a deterrent to transactions and new development. While a minimum contribution amount is unnecessary for TDR sales, REBNY acknowledges the need to determine the contribution amount for overbuilt floor area, but maintains that this 20% contribution amount must be based on a realistic valuation of TDRs.

The $393 PSF floor price established by the City is flawed in three important ways: 1) the valuation relies on land sales to approximate TDR value instead of studying actual TDR sales; 2) the City’s Market Study applied inflated and unwarranted growth rates despite market evidence to the contrary; and 3) half of the land sales that were used to determine the current floor price are systematically overvalued as a result of a failure to account for significant economic benefits available to sites within Hudson Yards.

TDR sales provide a far more appropriate and accurate view of the value of TDRs in Greater East Midtown. There is no market evidence in the City’s Market Study to support the upward price adjustments it applied to land sales to approximate TDR values. In fact, their study found that the value of TDRs over the eleven years reviewed is generally flat, if not declining. Therefore, any upward price adjustments would be inappropriate to apply to TDR values. Using the TDR transactions for office and hotel use cited in the City’s Market Study, and applying the City’s methodology of taking the lower quartile of the ten most recent sales, the value of TDRs is approximately $179 psf.

A REBNY analysis of land sales in Hudson Yards, which is integral to the City’s floor price, lends further support for establishing a lower contribution price for overbuilt floor area in East Midtown. The Hudson Yards sales used in the City’s Market Study were effectively overvalued and systematically misapplied since they did not factor in the significant economic benefits available to development sites in Hudson Yards. In these sites, developers were able to procure additional development rights, both by purchasing them from the Eastern Rail Yards and by contributing to the District Improvement Fund, for a far lower price per square foot than the cost of land. Additionally, the available tax benefits, estimated at roughly $70 psf, should have been considered. When all of these relevant economic factors are taken into account, the true value of development rights for a Hudson Yards site drops to $178 psf.

It is also important to note that while $393 psf is intended to represent the floor of the market, the City’s Market Study does not list a single transaction of office TDRs that is at or above that price.

The City’s proposal that would allow an applicant to commission the City to prepare a new appraisal is simply impractical given the volatility of the TDR market and the time it would take to complete this assignment. Additionally, given the overstatement of the value of air rights in the initial market survey, there are no assurances that even the new results would match the buyer and seller’s assessment of the market value of development rights. Instead of guessing TDR value, the City should allow the market to determine the fair market value and collect 20% of the sales price for public realm improvements.

Another fundamental issue that threatens the viability of the rezoning proposal is the constraints on what constitutes a qualifying site for new development. While we support the goal of creating new Class A commercial office space on the avenues, it is important to note that as-of-right development on midblock sites or through the enlargement of existing buildings would accomplish many of the goals of this rezoning at a lower cost and a more rapid pace [See Attachment 2: Park Avenue Development Analysis]. Such projects can offer equally appealing development opportunities as new construction that fronts on the avenues, but have lower opportunity costs. As a result, midblock development and enlargements would generate the funds needed for public realm improvements sooner.

We strongly encourage the City to develop guidelines to be written into the zoning text that would allow for the as-of-right development of midblock sites even when they do not have wide street frontage. For example, REBNY has proposed that through-block sites with at least 75 feet of cleared frontage on both streets be considered a qualifying site. Existing midblock buildings often times are underutilized and functionally obsolete, and thus would be less expensive to acquire than avenue-fronting buildings. Although various parties have expressed concerns that development of the scale being proposed will be out of context for midblock sites, these fears are unfounded given the current built form in the East Midtown Rezoning area [See Attachment 3: Midblock Character of East Midtown]. Flexible guidelines should also be proposed to allow for the as-of-right enlargement of existing buildings.

The proposed zoning text restricts new residential use to 20% of the new development. It is REBNY’s position, however, that the restriction should not apply to any existing residential portion on the zoning lot of a new development site.

Currently, the proposed zoning change requires post 1961 overbuilt buildings to buy back the overbuilt floor area by buying development rights from a landmark, while pre-1961 overbuilt buildings will buy back their overbuilt floor area by paying 20% of the floor price to the City. There is no planning rationale for treating overbuilt buildings differently strictly based on the date it was constructed. We ask that the City treat overbuilt buildings equitably and remove this unnecessary distinction. Likewise, we recommend that pre-1982 overbuilt buildings be covered by the damage and destruction provisions that are applicable to buildings constructed under the 1916 Zoning Resolution.

In addition, there are opportunities to modestly increase the amount of a building’s square footage without changing its built form (envelope). However, to acquire this modest amount of additional square footage, a full payment of all the existing overbuilt floor area would be required. This cost is punitive and will prevent the types of building improvements desired for this district. In such cases where the existing building is to remain and the amount of additional square footage is modest, a more reasonable pricing mechanism should be established.

The proposed hotel special permit in the Greater East Midtown Rezoning proposal is a dramatic departure from current land use regulations and a significant barrier to new hotel development. This new requirement will place an enormous burden on current plans to convert existing commercial space for hotel use and seems incongruous with the recent moratorium which impedes the elimination of hotel rooms for other uses. We would recommend a discussion to develop a provision in the rezoning plan that would achieve the intended goals of the special permit without imposing a special permit for hotel conversion projects underway, which would likely be abandoned if they were required to go through a special permit process.

In regards to height and setback regulations, the City has made reasonable and necessary adjustments to accommodate as-of-right development. The introduction of these rules was to provide more design flexibility than simple sky exposure and setback rules permit. Allowing new buildings to meet the score of what was on the site ensures that daylighting is unchanged from the existing condition prior to the new development. Also removing the encroachment penalty provides for more design flexibility and the opportunity to create more architecturally distinguished buildings without adverse impacts on daylighting.

The City should be commended for the introduction of a public concourse special permit to address the community’s and the Steering Committee’s concern over a lack of open space in the area. This special permit would provide the development community with a meaningful incentive of a 3 FAR bonus in exchange for meaningful public open space, while retaining a public review process that will give the community and elected officials the opportunity to tailor new development to create the open space desired.

While public concerns have been raised about potential impacts on Greenacre Park, based on our analysis, site visits, and review of the FEIS, it is clear that new development will not impose any significant impacts on the Park. [See Attachment 5: Shadows on Greenacre Park].

With regards to proposed public realm improvements, we strongly recommend that any future changes, particularly regarding street closures and changes to traffic patterns, be made with extensive consultation and input from adjacent or impacted property owners, BID representatives, and other stakeholders.

The built conditions and market of East Midtown is an environment that is challenging and costly for new development. As a mature market area with virtually no vacant sites, new development opportunities will occur slowly over time, and only when the leasing circumstances in individual buildings and market conditions in the area combine to make new development economically feasible. Therefore, we believe the aforementioned modifications are necessary to ensure that the rezoning achieves its stated goals.

East Midtown is a key job center in NYC. Its building stock, however, is aging and outdated; many buildings lack the slab-to-slab clearances and design efficiency that today’s tenants require. This rezoning proposal is needed in order to create opportunities for updated workspaces that will continue to attract companies and employers, while also funding much needed transit infrastructure and public realm improvements. It is our hope that the City Council will consider the issues raised, and put forth the strongest plan possible to ensure that East Midtown remains the world’s premier office district.